Zhuhai lawyer, Zhuhai legal consulting, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm].
The following article ** Yu Dechuan Civil and Commercial Lawyer, the author is Hong Dechuan Civil and Commercial Lawyer.
Hong Dechuan is a civil and commercial lawyer
Corporate legal counsel, civil and commercial dispute resolution. Virtue is in the law, and all rivers go to the sea.
Directory. One. Background of the law.
Two. Comparison of laws.
Three. Commentary on the law.
Four. Visual summary.
Background of the law. In corporate governance, corporate resolutions (including resolutions of shareholders' meetings, board of directors, board of supervisors, etc.) are related to the operation of the company, but in corporate disputes, due to objective reasons such as the small number of shares held by small and medium-sized shareholders and the failure to hold senior management positions, they are not notified to participate in the meeting and do not participate in voting, making the resolution procedure a legitimate tool for the actual controller, major shareholders and even senior executives to infringe on the interests of the company and shareholders.
The new Company Law, which came into effect on July 1, 2024, establishes the "three-way rule" of corporate resolutions, clarifies and improves the system of invalidity, non-establishment and revocation of corporate resolutions, and further protects the rights and interests of small and medium-sized shareholders.
Comparison of laws. 
Commentary on the law. Major change one:
The starting point of the time for exercising the right of revocation is adjusted to [the date on which the shareholders who have not been notified to attend the shareholders' meeting know or should have known]; Abolish the provision of guarantees by exercising shareholders.
Commentary:
1.The exercise period (exclusion period) of the right of revocation is originally short, only 60 days, and the starting point of the current company law is [the date on which the resolution is made], but small and medium-sized shareholders often know the content of the resolution through the industrial and commercial change information publicized by the third party, and the major shareholders can completely stagger 60 days between the defective resolution and the industrial and commercial change registration to drill the legal loophole. The New Company Law is a significant change in protecting the rights and interests of minority shareholders by taking the date on which shareholders who have not been notified of the shareholders' meeting [the date on which they knew or should have known] as the starting point.
2.The current Company Law stipulates that when a shareholder files a lawsuit for revocation of a corporate resolution, the court may require the shareholder to provide corresponding security at the request of the company, but the new Company Law abolishes this provision, which greatly reduces the cost of protecting the rights of small and medium-sized shareholders. However, the absence of a guarantee does not mean that the company will not be liable, and if the company suffers losses due to the shareholder's abuse of the right to sue maliciously interfere with the company's operation, especially the adoption of litigation preservation measures (such as freezing the company's account), the company will still be liable for compensation.
Although it is positive, small and medium-sized shareholders should still be vigilant enough to continue to follow up the company's operation, and should not let the right "lie in the coffin".
First of all, it should be noted that the date on which the company should have known can be presumed to be the date on which the shareholders should know the date on which the national enterprise credit information publicity network, Tianyancha, Qichacha and other ** public information changes of the company can be presumed to be the date on which the shareholders should know.
Secondly, the maximum exercise period of the right of revocation is one year, that is, whether the shareholder knows it or not, if more than one year from the date of the resolution is made, the shareholder's right of revocation will be lost.
Finally, the provisions of the New Company Law only refer to the resolutions of the shareholders' meeting, but do not include the resolutions of the board of directors, and before the judicial interpretation is expansive, if a shareholder claims to revoke the resolution of the board of directors, regardless of whether the shareholder is aware of it or not, the exclusion period should be calculated as 60 days from the date of the resolution of the board of directors. If a strict literal understanding is supported in future judicial practice, it cannot be ruled out that major shareholders with evil intentions will delegate some of the powers of shareholders' meetings to the board of directors and make resolutions at the board level to harm the interests of minority shareholders, and the same is true for the board of supervisors, so there is still a long way to go to protect the rights of minority shareholders.
Major change two:
Clarify the specific reasons for the non-establishment of the resolution.
Commentary:
The non-establishment of the resolution is mainly carried out from the procedural point of a core node of the resolution
1.There was no meeting. Common evidence in judicial practice is: meeting notices (including WeChat chat records, emails, mailing slips, etc.), meeting sign-in sheets, certificates, meeting videos, etc.;
2.No vote was taken. Common evidence in judicial practice is: documents related to resolution voting (signed and sealed by the entity with voting rights;
3.Attendance was not met. Common evidence in judicial practice is: the articles of association of the company (specifying the requirements for the number of attendees), meeting sign-in sheets, certificates, meeting videos, etc.;
4.The vote was not met. Common evidence in judicial practice is: the articles of association of the company (clarifying the voting ratio requirements), the relevant documents for resolution voting (signed and sealed by the voting entity), see the certificate, etc.
Less significant changes one:
Improve the legal consequences of defects in the resolution: The company shall apply to the company registration authority to revoke the registration that has been carried out in accordance with the resolution.
Commentary:
The governance of the company is manifested in the form of resolutions internally, and externally in the form of industrial and commercial registration. In the design of the litigation claim for the revocation of the company's resolution, in addition to the application for revocation of the resolution, it is necessary to file a complaint for change of registration, so that it can be fully implemented in the enforcement after the judgment. The improvement of the legal consequences of the new company law has formed a closed loop in the law, so that the rights defender's claim can be based on the law.
Less significant change two:
Delete the catch-all clause where the resolution is not established.
Commentary:
The current Company Law has a catch-all clause on the non-establishment of a resolution "other circumstances leading to the failure of the resolution", which gives judges considerable discretion. The author believes that the legislator has two advantages in deleting the catch-all clause: first, it can limit the discretionary power of judges and prevent them from being excessively expanded and resulting in inconsistent adjudication; Second, it also avoids the confusion between the two situations of non-establishment of the resolution and the revocation of the resolution in judicial practice, so as to clarify the boundary of the "three-way rule" of corporate resolutions.
There are no points of change:
Procedurally flawed resolutions that do not have a substantive impact are not necessary to be revoked.
Commentary:
In order to prevent shareholders from abusing their right to sue and affecting the normal operation of the company, and in order to protect the business environment, if there are only minor flaws in the procedures for convening meetings or voting methods, and there is no substantial impact on the resolution, excessive judicial intervention and interference should be strictly controlled. In judicial practice, the company should bear the burden of proof on two points: "there are only minor flaws in the resolution procedure" and "the flaws do not have a material impact on the making of the resolution".
Visual summary.
About the Author:
Lawyer Hong Dechuan.
He is a full-time lawyer at Beijing Jingshi (Shenzhen) Law Firm and a member of the Corporate Legal Counsel Professional Committee of Shenzhen Lawyers Association.
Served as legal counsel for a number of well-known enterprises, focusing on civil and commercial dispute resolution in the fields of private lending, corporate disputes, contract disputes, etc., and the cumulative subject matter of the entrusted cases has reached nearly 300 million yuan.